We
grant Petitioner's Emergency Petition for Writ of Habeas
Corpus, and direct his immediate release from incarceration
for the charges addressed here. We write to explain the
context of Petitioner's sentences, and to provide the
procedural background of this case.

I.
Charges and Sentences.

In
2007, Petitioner was charged with fifteen crimes including
attempted lewd or lascivious conduct involving a victim
between twelve and sixteen years old, attempted lewd or
lascivious battery of a child less than sixteen years old,
eleven counts of possession of child pornography, and
possession of a misdemeanor amount of cannabis. One
additional charge was nolle-prossed. The attempted lewd or
lascivious conduct and battery, and the child porn charges,
are third-degree felonies with maximum sentences of five
years each. See §§ 800.04(6) (conduct),
800.04(4) (battery), 777.04(4)(d) (attempt is third-degree
felony); 827.071(5) (child porn); 775.082(3)(e) (five-year
maximum for third-degree felony), Fla. Stat. (2006).
Petitioner pleaded nolo contendere. The trial court sentenced
him to three years in prison for the attempted lewd or
lascivious conduct, a consecutive five years on probation for
the attempted lewd or lascivious battery, consecutive five
years' probation for one of the child porn charges, and
consecutive two years' probation for another child porn
charge. The court ran all remaining sentences concurrent with
one another and concurrent with the five-year probationary
sentence for the attempted lewd or lascivious battery. Thus,
although the trial court had the discretion to sentence
Petitioner to multiple consecutive sentences, the court
imposed a sentence of three years in prison followed by
twelve years on sex-offender probation. Petitioner was
required to participate in sex-offender counseling and to
register as a sex offender under section 943.0435 of the
Florida Statutes. He was prohibited from possessing any form
of pornography or obscene or sexually-stimulating material,
from having a computer, and from accessing the internet in
any way.

Petitioner
served approximately thirty months in prison, from 2007 to
2010. Upon being released, he began serving his twelve years
of probation, which would end in 2022. In 2010, only eight
months after his release, he was charged with a violation of
probation when his probation officer found sexually-explicit
messages on Petitioner's cell phone. However, this charge
was dismissed, and Petitioner continued to serve the
probationary portion of his 2007 sentence.

In late
2014, Petitioner had completed his sentences on counts 1 and
15 (attempted lewd or lascivious conduct and drug
possession), and was serving his first five-year probationary
period on the attempted lewd and lascivious battery and child
porn charges. He was charged with another violation of
probation when his probation officer searched his room in his
grandmother's house and found an iPad hidden under fabric
on his bed. Petitioner admitted the iPad was his. It was
capable of accessing the internet, thus violating two terms
of probation. In 2015, after proceedings on these violations,
the trial court revoked Petitioner's probation and
sentenced him on all charges collectively to a term of five
years in prison plus two years' probation. His
sex-offender requirements remained in place.

This
2015 sentence is important in three respects. First, the
trial court (a successor judge) did not re-impose independent
or consecutive sentences on each of the remaining original
charges, which could have resulted in a longer overall
sentence that could have both honored the original sentences
(although the successor judge was not required to do so), and
forestalled the present situation. Second, by imposing this
sentence on all remaining charges collectively, the trial
court eliminated the possibility of using consecutive
sentences to extend the overall sentence past five years. The
result was a seven-year split sentence on crimes subject to a
statutory maximum sentence of five years. Third, the 2015
sentence included a provision granting Petitioner credit for
all time previously served "on this case," plus
another 281 days of jail credit.

The net
effect of the 2015 sentence terms was that Petitioner's
original 2007 sentence of fifteen years, expiring in 2022
(except for any ongoing sex-offender requirements), became a
sentence of only fifteen months more than Petitioner had
served from 2007 to 2010. He returned to prison in July of
2015 and was released on November 1, 2016. At that point,
Petitioner had served the entirety of the legal portion of
his sentence, and the trial court no longer had jurisdiction
over him. See Aponte v. State, 896 So.2d 836, 838
(Fla. 1st DCA 2005) (reversing sentences resulting from
revocation proceedings in third-degree felony cases because
trial court lost jurisdiction once appellant had spent five
years incarcerated or on probation). Nevertheless, because
this issue was overlooked, Petitioner was placed on probation
for two years as sentenced, to expire November 1, 2018. He
did not appeal or file a collateral motion to assert that the
sentence was illegal for exceeding five years. See
Campbell v. State, 854 So.2d 257, 258 (Fla. 1st DCA
2003) (reversing for further proceedings on appellant's
motion under Fla. R. Crim. P. 3.800(a) raising illegality of
sentence over five years for a third-degree felony). Although
these sentences were entered after a plea, "[e]ven with
a defendant's consent, the court is without jurisdiction
to impose a sentence beyond the statutory maximum."
Gonzales v. State, 816 So.2d 720, 722 (Fla. 5th DCA
2002); cf. Carson v. State, 37 So.3d 884, 886 (Fla.
1st DCA 2010) (finding that the trial court could properly
impose a special type of probation to which the defendant
pleaded even if it could not impose it in the absence of a
plea).

In
April of 2018, when it seemed Petitioner was still within his
two-year probationary period from the 2015 sentence, he was
charged with a violation of probation for the new law offense
of battery on a person age 65 or older, apparently the
81-year-old grandmother who had raised him. He was drunk, got
into an argument with her, and pushed her down, dislocating
her shoulder and injuring her arm. He admitted the
allegations. At the sentencing hearing for the violation of
probation, the parties discussed that any sentencing for the
new law violation itself would occur later. Petitioner's
counsel incorrectly advised the trial court that the
attempted lewd or lascivious battery charge was a
second-degree felony with a maximum sentence of ten years,
and that the parties had agreed to a ten-year sentence.
Petitioner entered this negotiated no-contest plea pursuant
to which he was sentenced to ten years in prison for the
attempted lewd or lascivious battery charge, with five
years' probation for the child porn charges. Petitioner
then moved to withdraw his plea on grounds that he ...

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